A federal court has let a Park Police Officer off the personal liability hook for his action in stopping the plaintiff’s “expressive dance” honoring Thomas Jefferson’s birthday at the site of the Jefferson Memorial in Washington, D.C. (Oberwetter v. Kenneth Hilliard and Kenneth L. Salazar, D.D.C. Civil Action No. 09-0588 (JDB), 1/25/10)

On April 12, 2008, Mary Brooke Oberwetter and seventeen friends gathered inside the memorial on the eve of the former president’s birthday with the intent of honoring him. The form they chose to honor him was by dancing “for the most part by themselves, in place, each listening to his or her music on headphones” because in this way they were expressing “the individualist spirit for which Jefferson is known.” (Opinion p. 5)

Now, the Park Service has lots of regulations that generally bar demonstrations and the like in parks and monuments in and around Washington, D.C. unless a permit has been applied for and issued by the agency.

In the special case of the Jefferson Memorial (along with the Washington Monument, Lincoln Memorial and the Vietnam Veterans Memorial), permits will not be issued for demonstrations and special events to protect “legitimate security and park value interests, including the maintenance of an atmosphere of calm, tranquility, and reverence in the vicinity of [these] memorials.” (p. 3)

Separate regulations further bar individuals from interfering with the agency as it goes about protecting the nation’s parks and monuments.

So, on April 12, 2008 when Officer Kenneth Hilliard ordered Ms. Oberwetter and her friends to stop dancing and leave the memorial, she refused and challenged the order. Officer Hilliard arrested her for demonstrating without a permit and interfering with an agency function. (p. 1)

Oberwetter sued Officer Hilliard in his personal capacity and sued the Secretary of the Department of the Interior in his official capacity. Her theory was that the First Amendment of the Constitution protects her expressive dancing. The agency and Hilliard moved for dismissal of the case. The district court has granted the motions for dismissal and Oberwetter is left out in the cold. (p. 2)

Essentially, the court has bowed to the agency’s interpretation of its regulations and found those regulations to be reasonable. The court states, “the Jefferson Memorial has the specialized purpose of publicizing one of the nation’s founders—supporters and critics alike may visit the Memorial to contemplate Jefferson’s place in history. This purpose marks the Memorial as unique, and hence unlike quintessential examples of public fora. …” (p. 15) The court goes on to conclude that barring expressive activities in a nonpublic forum (such as the Jefferson Memorial) does not violate the First Amendment if it is viewpoint neutral and is “reasonable in light of the use to which the forum is dedicated.” (p. 16) In this case, the court finds that the regulation is “viewpoint neutral” and reasonable.

Since Oberwetter’s case against Officer Hilliard is based on a contention that he violated her constitutional rights, and since the court has concluded that she possessed no such right, then this part of her case “necessarily fails.” (p. 21) Finally, the court concludes that Officer Hilliard had probable cause to arrest Oberwetter and therefore her claim that he violated the Fourth Amendment for false arrest is also dismissed. (p. 23)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.